2 de diciembre 2024
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The United Nations Group of Human Rights Experts on Nicaragua (GHREN) expressed “deep concern” over the extensive constitutional reform that “grants President Daniel Ortega’s government virtually unlimited power over the country's population.”
Constitutional lawyer Reed Brody, appointed in September 2024 as a new member of GHREN—alongside its chair Jan-Michael Simon and legal expert Ariela Peralta—stated, “Apart from a few absolute monarchies, I don’t think I’ve ever seen a constitution that concentrates so much power in the hands of the executive.” In an interview with Esta Semana, broadcast on Confidencial’s YouTube channel due to television censorship in Nicaragua, Brody emphasized that the independence of the judiciary in Nicaragua was already compromised. However, he added that “limiting the judiciary's power through the Constitution is, to me, the most serious aspect.”
Known as the “Dictator Hunter,” Brody began his international human rights career in Nicaragua 40 years ago, in 1984, when he investigated atrocities committed by the armed counterrevolution against the civilian population. He is now tasked with investigating the crimes against humanity attributed to Daniel Ortega and Rosario Murillo and the chain of command behind the repression, as outlined in GHREN reports.
Brody participated in the investigation of the Rwandan genocide and played a key role in bringing the Chadian dictator Hissène Habré to international justice. He also contributed to the investigation and documentation of crimes committed by dictators Augusto Pinochet in Chile and Jean-Claude Duvalier in Haiti.
For 20 years, he served as legal counsel and spokesperson for Human Rights Watch. Brody has led UN missions in the Democratic Republic of Congo and El Salvador, represented exiled Tibetan women at the UN conference in Beijing, and, for several years, has pursued former Gambian dictator Yahya Jammeh, who is currently exiled in Equatorial Guinea.
The Hungarian-born American lawyer emphasizes that GHREN’s mission is not to provoke regime change in Nicaragua. “It’s not the cases in courtrooms, whether in some countries or The Hague, that will change the regime. But they provide a way to deliver justice to the victims, allow them to speak and present their facts when they can, restore dignity to people, talk about their suffering, and document it. And I think this is very important for our group, NGOs, and civil society—to document because that is never lost. And if there is no justice today, there will be justice tomorrow.”
This week, the Group of Human Rights Experts on Nicaragua (GHREN) issued a statement expressing its deep concern over the sweeping reform to Nicaragua's Constitution, which grants the Ortega-Murillo regime “unlimited power over the population.” What are the implications of this new Constitution for human rights in Nicaragua, which had already been decimated through de facto measures over the past six years?
Reed Brody. With this constitutional reform, the current government seems intent on legalizing and consolidating its unrestricted control over power. As UN High Commissioner for Human Rights Volker Türk stated, these changes could mark the end of freedoms and the rule of law in Nicaragua. They further erode the already fragile checks and balances on executive power.
I’m a constitutional lawyer, and at one point in my life, I worked with the United Nations advising countries on drafting their constitutions. Honestly, apart from a few absolute monarchies, I don’t think I’ve ever seen a constitution that concentrates so much power in the hands of the executive.
A good modern constitution is one of limited powers. Of course, there are different ways to structure power—there are parliamentary systems, presidential systems, and constitutional monarchies—and it’s up to each state and its people to decide. But the danger lies in its impact on human rights, especially the lack of judicial independence. In any system, the rule of law must be upheld by an independent judiciary.
Although judicial independence has already been undermined for a long time in practice, the constitutional limitation of the judiciary is, to me, the most alarming aspect. For example, the reform removes the explicit prohibition of torture from the Constitution, yet Nicaragua remains a party to the Convention against Torture and other international treaties, and the reform references these international instruments. But without an independent judiciary to punish acts of torture, how will these conventions be enforced? For me, the gravest concern is the weakening of the judiciary's independence.
In the statement issued by the Group of Experts, they call on the international community regarding this reform, which aims to legalize the already existing totalitarian dictatorship in Nicaragua. However, apart from the UN, a tweet from a U.S. Deputy Secretary of State, and the Secretary General of the OAS—of which Nicaragua is no longer a member—there has been no reaction from any country in Latin America or the European Union. Is Nicaragua’s dictatorship becoming normalized within the international community?
Reed Brody. Perhaps. The government’s actions come one after another and so quickly that it’s difficult for many to keep up. I believe everyone is aware of how dire the situation in Nicaragua is and is searching for ways to influence it. But it’s true that, outside of the OAS and the United Nations, there has been a notable lack of condemnation of these measures.
When the government strips away individual rights that were previously protected under the Constitution, it’s almost as if a human rights violator is directly incriminating themselves. Does this have any repercussions for the ongoing investigations into Nicaragua?
Reed Brody. A de facto situation becomes a de jure one, and that can ultimately help demonstrate intent and a chain of command, showing that these violations aren’t the actions of mid-level officials or isolated individuals. The fact that such measures are enshrined in the Constitution as state policy indicates that they originate from those enacting these laws.
In the reports issued by the Group of Experts, a chain of command involving high-ranking officials—headed by Daniel Ortega and Rosario Murillo—has been identified as potentially responsible for crimes against humanity. What is needed to prosecute these individual responsibilities? How far does the Commission’s work go?
Reed Brody. Our commission is mandated to investigate and identify those responsible, and in previous reports, the Group has pointed to the potential responsibility of the President and Vice President, reporting this to the UN Human Rights Council. However, it is up to states to find ways to prosecute these matters.
There are several possibilities already mentioned in our reports and discussed by others. For instance, there is an ongoing procedure at the International Labour Organization (ILO) regarding violations of the right to association. In Argentina, individual cases are being pursued under the principle of universal jurisdiction. Additionally, certain states could file lawsuits against Nicaragua at the International Court of Justice for failing to comply with treaties such as the Convention Against Torture or the 1961 Convention on the Reduction of Statelessness.
So, the issue of statelessness is the violation that most distinguishes Nicaragua from all other countries in the world. It would be very interesting if there were a state with the courage or the interest to seek to judicialize this issue.
It’s not the cases in other countries, or in The Hague, that will change the regime. But they are a way to deliver justice to the victims, to allow them to speak and present the facts when they can, to restore dignity to people, to talk about their suffering, and to document it.
Alongside the approval of this new dictatorial constitution, this week there has been a new wave of detentions in Nicaragua. At least 30 people are missing, but under the climate of fear in Nicaragua, even the families are too afraid to report or reveal their names. What alternative do they have in this state of helplessness?
Reed Brody.It’s very difficult, both for them and for us. We do our work from abroad. We also don’t want to put people’s lives or physical integrity at risk. So, I am confronted with the idea of finding ways to make reports more safely.
It’s clear that today in Nicaragua, anyone who makes a report is putting their life and physical integrity at risk. So, we have to find better ways for people to report from within Nicaragua or from abroad and give us concrete facts.
Based on your own experience investigating crimes against humanity in other countries, what does the hope for justice in Nicaragua depend on? Some people say—first, there must be a political change before justice can move forward. Or can international justice initiatives also open paths for political change?
Reed Brody. Both. Obviously, it won’t change, and it’s not the job of our Group to change the regime. But judicial initiatives are a way to shine a light on a situation and weaken the legitimacy of the violations being committed.
It’s not the cases in other countries, or in The Hague, that will change the regime. But they are a way to deliver justice to the victims, to allow them to speak and present the facts when they can, to restore dignity to people, to talk about their suffering, and to document it.
When we were in London in 1998, in the case of (Augusto) Pinochet, in the House of Lords, one of our legal team members was Roberto Garretón, who had been the legal head of the Catholic Church's Legal Protection Office in Santiago. And he told me: “At that time under Pinochet, we filed thousands of habeas corpus petitions. We documented everything, and I wondered why I was doing all that, but today, with Pinochet detained in London, with hearings on his immunity in the House of Lords, I understand why we did it.”
I believe it is very important for our Group, NGOs, and civil society to document because that never gets lost. And if there is no justice today, there will be justice tomorrow.
You are currently gathering evidence, testimonies—how do you do that? How can victims or informants have secure communication with the Group of Experts and provide their testimony or information?
Reed Brody. If you go to our website, from the UN High Commissioner for Human Rights (https://www.ohchr.org/), under the GHREN section, there are links to make confidential reports. Write to us at ghren@un.org, and we encourage people to take that route.
This article was published in Spanish in Confidencial and translated by our staff. To get the most relevant news from our English coverage delivered straight to your inbox, subscribe to The Dispatch.
